Subject: Re: termless copyright and patents
From: simo <s@ssimo.org>
Date: Fri, 29 Sep 2006 11:17:16 -0400

On Fri, 2006-09-29 at 07:38 -0700, Thomas Lord wrote:
> Um, what is to prevent you from doing that?   The covenant made by a
> GPLv3
> distributor licenses the patent for any use covered by the user's
> exercise of 
> his GPLv3 rights.     If the web server contains a fast, patent
> protected 
> lexical analyzer for XML, users certainly are free to modify the web
> server
> to isolate that code and then morph it into a component of a space
> shuttle.
> 
> Brian B. earlier asked a scope question.   What counts as practicing
> the patent
> in something like a space shuttle?   Is it just the one GPLed program
> morphed
> from the web browser?   Or is it the whole assembly of the shuttle.
> 
> The GPLv3 makes Brian B.'s question moot.   The covenant it requires
> permits any use of the patent arising from the exercise of GPL rights.

Uhmm language may need some more refining here probably. Even the
rationale is not clear to what extent the covenant will cover "derived"
works that are completely different from the original.

One thing is sure anyway. A Patent is often built on many claims, you
are given a covenant only for the claims that apply to the software as
distributed. So if you, by deriving the software start infringing in
other claims, you are not covered by the covenant.

> Sure, they are better off using the GPLed code first and, often, that
> will not
> mean that they have to GPL all of their own code if they don't want
> to.

As you know this one really depends on the patent and the code, so you
can;t really generalize.

> But supposing they haven't been using GPL, and that problem is trivial
> to
> correct, if the patent holder has been damaged *at all* it isn't by
> much.

How so? Damages are often calculated based on the amount of money made
by the infringer by infringing the patent. It does not matter if the
same patent was available for free for other uses, the patent holder
decides how to license and make it available, if you loose in defending
your right to use it then damages can well be asked.

> 
> > > Holders of defensive portfolios, who distribute lots of GPLed
> > > code, are at interesting risk here: their defense stance is greatly
> > > weakened relative to other firms not distributing lots of GPLed
> > > code.
> > >     
> > 
> > No, that's wrong again, the patents will not be available to
> > competitors, unless they use the patent holder GPLed program.
> >   
> 
> Which is not much of a restriction.

Oh well you can't say that, go ask MS to release the source code of
their OS under the GPL because they infringe on a patent about managing
the Virtual Memory ...

> Right, they must go through the fairly trivial exercise of deriving
> the code
> which embodies the patent from sources which the patent holder has
> conveyed.

You assume everything is trivial, I wish it was so, we would have
fantastic software today :-)

> And if they have previously failed to do that in some instance, but
> the 
> problem is trivial to correct, the defensive patent isn't worth much.

non sequitur, the infringment was done by non-GPLed and non-derived
software, remedies to past infringement are separate from license for
future distribution.

> It's interesting that you should bring this up because it applies to
> purely 
> GPLed programs as well.    Suppose that Acme Co. conveys a Linux
> kernel
> embodying one of their patents.    I, on the other hand, do a fresh
> GPL
> implementation of their invention for use in my lisp machine kernel.
> If Acme Co. has not themselves conveyed my lisp machine kernel, 
> then neither may I.

Correct, you will not be covered. What's strange in it?

> Such use of the code by competitors -- use which encompasses all of
> the 
> copyright permissions of the GPL -- is very open ended and often will
> not require the competitor to GPL lots of their own code.

Again this really depends on the code. You cannot make such simple
generic statements.

> It goes further because the company that sold you the software must
> also permit you to modify it and distribute modifications, subject
> only
> to the limits of GPL copyright permissions.

Correct, but patents works in a different way, and permission to use 1
claim does not imply permission to use all the patent claims.

Simo.